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Preliminary Exams in OWI Causing Death Cases

by ptbarone on July 31, 2009

The following question was recently asked on a criminal defense listserve:

Q:  Has anyone waived a preliminary examination on an OWI Causing Death case to avoid Enhancement to Second Degree Murder?

Since many non-lawyers follow this blog, let’s first define the term “preliminary exam” as that term is used in Michigan.  This definition is from the Eaton County Prosecuting Attorney’s web site:


District Court evidentiary hearing for felonies where the Prosecutor must present evidence amounting to at least probable cause that the charged felony crime(s) in fact occurred and that the defendant committed it (them). Generally, the Prosecutor presents just a fraction of his total evidence and witnesses. The defendant (or his attorney) can cross-examine the People’s witnesses, and present his own proofs to refute the People’s evidence. If the Prosecutor meets his burden of proof, the case is “bound over” to Circuit Court for arraignment on an information, and possible trial.

There is a related important definition which is the “14 day rule.”

14-Day Rule: defendants have a statutory right to have their Preliminary Examination within 14 days after their arraignment. [See MCL 766.4, MCR 6.104(E)(4).]

 A more detailed description can be found in a Michigan Bar Journal Article entitled “Preliminary Examinations.”  The following is an excerpt:

 Primary Nature and Purpose of Preliminary Examinations

A preliminary examination is the first substantive hearing in district court before a judge in felony cases, during which the state is required to produce sufficient evidence to establish that there is probable cause to believe that a felony has been committed and that the defendant committed it. If this is proven, the case is bound over to the circuit court for further proceedings.

In the pursuit of justice, other important purposes of preliminary examinations for the state and the defense are setting the amount of bond the defendant will receive if held for trial, the receipt of information about the credibility of witnesses and evidence (i.e., discovery), the weeding out of groundless or unsupported charges, the preservation of testimony in the event a witness disappears or dies before trial, and the relief of the accused from the degradation and expense of a criminal trial while also preventing any unnecessary deprivation of liberty.

While Michigan law currently requires that preliminary examinations must be offered in OWI Causing Death cases, it is not mandatory that they be conducted.  In other words, the preliminary examination hearing can be “waived” or not conducted by the defense attorney.

Now that we have this information we can better understand the question. 

In the above question the attorney is asking other attorneys participating in the listserve whether or not he should waive the preliminary examination on behalf of his client.  What has happened is the prosecutor in this OWI causing death case has threatened to add a new more serious charge if the defense attorney “forces” the prosecutor to conduct the exam.

It is not really possible for anyone but the defense attorney and his client to answer this question, but here are a couple of things to consider in making the decision as to whether or not to conduct the preliminary examination in an OWI Causing Death case: 

  • The number one reason to conduct an examination is to use the exam to “discover” the strengths and weaknesses of the prosecutor’s case.  OWI causing death cases are exceedingly difficult and potentially complicated cases.  There really is no way one can begin to fully understand the entire case only relying on police reports and state supplied discovery. 
  • In preparing for the preliminary examination, a defense attorney should have prepared for each proposed exam witness a specific goal or set of goals.  This includes all witnesses; from the arresting officer to the medical examiner to the accident reconstructionist to the forensic scientist (if blood) to the phlebotomist, to the toxicologist (if blood or drugs). 
  • With these goals in mind the question becomes: if you waive the exam what will substitute exists for obtaining this information and meeting these goals? 

Another set of questions relates to possible defenses:

  1. Can any available defense(s) be established and the defense appropriately prepare for trial without an exam? 
  2. Is it possible to elect the best defense from among possible defenses without an exam?
  3. Can a defense still mount an attack on the chemical tests without an exam?
  4. Is it possible for the defense to know how well or not well each proposed witness will testify without an exam?  
  5. Can the defense know a witness’ strengths or weaknesses without an exam? 
  6. Will prosecutor make same “threat” if the defense tries to schedule an evidentiary hearing at the trial court level?

With a case as complicated and complex as OWI Causing Death it would be exceptionally difficult to do anything but plead a client at the circuit after waiving an exam.  Certainly it would be far more difficult to be adequately prepared for trial.


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